Itaia v Terabwena [2007] KIHC 126; High Court Civil Case 52 of 2006 (1 August 2007)

IN THE HIGH COURT OF KIRIBATI
CIVIL JURISDICTION
HELD AT BETIO
REPUBLIC OF KIRIBATI

High Court Civil Case 52 of 2006

BETWEEN:

TEANIBUTI ITAIA
BETANG ETEI
Applicants

AND:

TEAOKA TERABWENA
Respondent

For the Applicants: Mr Aomoro Amten
For the Respondent: Mr Banuera Berina

Date of Hearing: 1 August 2007

JUDGMENT

The first applicant claims through her grand mother and the second applicant claims through her mother to be entitled to share in the rents from part of the land leased by the Government for the Nikunau airport. They base their claim on being descendants of the original land owner Teaoka Kautoa who died in 1956. The grand mother of the first applicant was a child by his first spouse: the mother of the second applicant was a child by his second spouse.

The respondent is a grandson of Teaoka Kautoa by the first spouse. The respondent’s mother was N. Tebeau. In 1979 N. Tebeau entered into an agreement to lease the land to the Nikunau Island Council. The lease is before the Court, appears to have been regularly completed, approved by the magistrates court of Nikunau and signed by the President.

The records of the Nikunau court between 1977 and 1990 were burnt in a fire. There is no record available as to when N. Tebeau became registered over the land after her father. Mr Berina has submitted that she must have been registered: the records should still have been in existence and the magistrates would have had access to them shewing N. Tebeau as the registered owner. Otherwise the President would not have signed the approval of the court to the lease.

N. Tebeau died probably in the later 1980s. In CN 13/94 the Nikunau magistrates registered the name of her son Teaoka Kauriri over her lands. [He is also known as Teaoka Terabwena]. The present application is for an order of certiorari to quash this decision. The applicants claim they should have been notified of the hearing of CN 13/94 as they are descendants of the original land owner Teaoka Kautoa: they dispute any registration of his lands after his death. They claim they should share in the rents of the land leased in 1979. As with the approval of the lease, so with the approval of the registration of the respondent’s name in 1994, Mr Berina has pointed out that the five magistrates from their local knowledge would have known that N. Tebeau had been registered as owner of the lands transferred to her son.

The applicants base their claim on an addition in manuscript to the lease agreement. After the name of the landowner (Nei Tebeau Teaoka) have been added the letters "mt" and a reference to a case in 1973. Who made this addition and why is not known. Mr Berina has assured the Court that, having searched the records, the 1973 case has nothing to do with this land. Before coming to a final conclusion I shall give Mr Amten an opportunity to search for himself the record of that case.

Subject to Mr Amten’s further submissions after making the search, on the balance of probabilities I am against him. The sister of N. Tebeau through whom the applicants trace their claim died in 2001. In her lifetime,
Mr Berina says, she never made a claim to a share in the rents. Probably that manuscript addition to the lease is irrelevant and N. Tebeau was the sole owner and she alone entitled to the rents.

Finally Mr Berina has pointed out the prejudice to his client through the delay in making this application.

THE HON ROBIN MILLHOUSE QC
Chief Justice